Selected Questions and Answers in International Law

Question 1. What does Germany invoke as the basis for the jurisdiction of the International Court of Justice in Questions of jurisdictional immunities of the State and measures of constraint against State-owned property?

a. Issue:

The application to the International Court of Justice (ICJ) submitted by Germany on April 29, 2022, maintained that Italy violated Germans sovereign immunity when it allowed victims from Italy to file claims against Germany in Italian courts for violations of international humanitarian law that were committed against the Italian victims and/or their relatives at some point during World War II. In support of its claims, the application by Germany states in part that:

(1) Italy has violated, and continues to violate, its obligation to respect Germanys sovereign immunity by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945, including, but not limited to, in 25 proceedings, listed in Annex 6 [to the Application], instituted against Germany since the judgment of the Italian Constitutional Court of 22 October 2014.

(2) Italy has violated, and continues to violate, its obligation to respect Germanys sovereign immunity by taking, or threatening to take, measures of constraint against German State-owned properties situated in Italy, including against the [German Archaeological Institute Rome], the [German Cultural Institute Rome], the [German Historical Institute Rome], and the [German School Rome]. (Germany institutes proceedings against Italy, 2022, pp. 1-2)

b. Rule:

In this situation, Article 41 of the International Court of Justice's Statute stipulates that, In situations of gravity and urgency, the ICJ can indicate or order provisional measures of protection, pursuant to Article 4 of its Statute, so as to prevent or avoid irreparable harm. Such provisional measures, thus endowed with a preventive dimension, have a binding character (Statute of the International Court of Justice, p. 11).

c. Application:

At some point in time, claims that originated in wars that were fought long ago must be regarded as res judicata, even if no relevant statute of limitations is applicable; otherwise, individuals could claim damages from wars that date to antiquity. In this regard, the ICC ultimately held, in part, that Italy did in fact violate Germanys sovereign immunity under international law in this case by allowing civil claims to be filed against it by Italy.

d. Conclusion.

Germany was correct to invoke the jurisdiction of the International Court of

Justice in this case and should prevail given the nearly 80-year time period that has elapsed since the violations alleged by Italy occurred.

In your view, will the ICJ declare itself competent to hear this case?

In a previous related case, Germany relied on Article 1 of the European Convention for the Peaceful Settlement of Disputes dated April 29, 1957 and subsequently ratified by Germany on April 18, 1961 and Italy on January 29, 1960 as the basis for invoking the ICJs jurisdiction in the instant case (Jurisdictional Immunities of the State [Germany v. Italy: Greece intervening], 2009). The provisions of Article 1 state in part that, Disputes shall be brought before the Special Conciliation Commission by means of an application addressed to the President by the two parties acting in agreement or, in default thereof, by one or other of the parties (p. 1). Likewise, Article 38 of the ICJ Statute also stipulates that:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

international custom, as evidence of a general practice accepted as law;

the general principles of law recognized by civilized nations.

Therefore, the ICJ will likely accept jurisdiction in this case as well.

Question 2. Could Italy bring a claim to the International Court of Justice on behalf of one of its nationals who has been the victim of an internationally wrongful act committed by

Germany? If so, based on what theory of international law? Explain.

a. Issue:

Can victims of an internationally wrongful act in one country that are committed by another country bring a claim to the ICJ and, if so, what theory of international law is controlling?

b. Rule:

A report by the International Law Commission (ILC) emphasizes that, Every internationally wrongful act of a State entails the international responsibility of that State (p. 32). In support, the ILC report cites Article 1 which sets forth the fundamental legal principle that, An internationally wrongful act of a State may consist in one or more actions or omissions or a combination of both. Whether there has been an internationally wrongful act depends, first, on the requirements of the obligation which is said to have been breached and, secondly, on the framework conditions for such an act (p. 32). In this context, the term international responsibility includes international law issues that arise due to the wrongful act or acts by a state (Responsibility of States for Internationally Wrongful Acts, 2001).

c. Application:

The ICJ is the court of competent jurisdiction for international cases of this nature.

d. Conclusion:

Based on the above-described rule, Italy could bring a claim to the ICJ on behalf of one of its nationals who has been the victim of an internationally wrongful act committed by

Germany, but it remains uncertain whether Italy would prevail under these circumstances.

Question 3. In order to enforce the judgments awarding damages to victims of international humanitarian law violations by the German Third Reich during...…a settlement out of court, it is possible that the case will later be removed from the ICJ's docket. What role do you think the initiation of the proceedings played in bringing the two states to the table and finding an agreement to their legal dispute? Is this, in your view, an essential role played by this court? What other role(s) does it play in the international system?

a. Issue: What role, if any, did Germanys legal action against Italy in the ICJ play in prompting the parties to arbitrate in order to facilitate a resolution to this issue?

b. Rule: An important part of the mission of the ICJ is the pacific settlement of international disputes (ICC History, 2022).

c. Application: Throughout Europe and dating to the Middle Ages, arbitration has been an integral part of resolving international legal issues in a peaceful fashion (Wilske et al., 2021). Indeed, the Permanent Court of Arbitration, a predecessor body to the ICJ, was created in 1900 pursuant to the provisions of the 1899 Hague Peace Conference with that specific mission mandated by the signatories to the Convention on the Pacific Settlement of International Disputes (History of the ICJ, 2022). In this regard, the ICJ reports that, The system thus established was permanent, and the Convention institutionalized the law and practice of arbitration, placing it on a more definite and more generally accepted footing. The Permanent Court of Arbitration was established in 1900 and began operating in 1902 (History of the ICJ, 2022, para. 7).

In many situations, however, the parties to a legal dispute only resort to arbitration, though, when formal proceedings have already been instituted by one or all parties such as in the instant case. Consequently, the ICJ played an important role in furthering the resolution of this legal dispute by formally codifying the issues that are involved, controlling laws and rules as well as the respective positions of each of the parties. In addition, the ICJ also plays an important role in the international system by promoting collaboration and harmonious relations between member-states as well as the rest of the international community. For example, the ICJ points out that, The ICC actively works to build understanding and cooperation in all regions, for example, through seminars and conferences worldwide. The Court cooperates with both States Parties and non-States Parties (How the Court Works, 2022, para. 10).

d. Conclusion:

Similar to the legal system in the United States, the settlement of lawsuits through arbitration represents an essential element since it frees the courts from the burden of costly and time-consuming trials, many of which could be resolved through compromise. Moreover, by placing a high priority on arbitration, the ICJ sends a clear message to the international…